Calcutta High Court (Appellete Side)
Nazrul Islam & Ors vs The State Of West Bengal on 20 November, 2017
Author: Joymalya Bagchi
Bench: Joymalya Bagchi
Item no. 246
Aloke/Sanjib
IN THE HIGH COURT AT CALCUTTA
CRIMINAL APPELLATE JURISDICTION
Present :
The Hon'ble Justice Joymalya Bagchi
And
The Hon'ble Justice Rajarshi Bharadwaj
C.R.A. 80 of 2009
Nazrul Islam & Ors.
Versus
The State of West Bengal
For the appellants : Mr. Sekhar Kumar Basu, Sr. Adv.
Mr. Souvik Mitter
Ms. Arushi Rathore
For the State : Mr. Arun Kr. Maiti, Ld. Addl. P.P.
Mr. Sanjay Bardhan
Ms. Kaberi Sengupta
Heard on : 20.11.2017
Judgement on : 20.11.2017
Joymalya Bagchi, J.:
At the outset, I am informed that the appellant no. 1 Nazrul Islam alias Nazrul Mondal has expired. This is not disputed by the learned counsel appearing for the State. Accordingly, appeal against the appellant no. 1 stands abated.
The appeal is directed against the judgement and order dated 17.12.2008 passed by the learned Additional Sessions Judge, 1st Court, Barasat, 24 Parganas (North) in Sessions Trial No. 3(2) 2002 arising out of Sessions Case No. 5(3) 1999 convicting the appellants for commission of offence punishable under Section 302/34 of the Indian Penal Code and directing them to suffer rigorous imprisonment for life and a fine of Rs.5,000/- (rupees five thousand), in default, to suffer rigorous imprisonment for two years more. It was further directed that the amount of fine, if paid, shall be paid to P.W. 8, the wife of the deceased by way of compensation.
The prosecution case, as alleged, against the appellants is to the effect that in the midnight of 30/31.01.1992 when Liakat Ali Mallick (P.W. 1) was asleep in his room he heard a sound of explosion of bomb and upon wakening he saw that a scuffling was going on between Hamida Khatoon (P.W. 2) and appellant no. 1, Nazrul Islam. Four or five miscreants were focussing torch and had hansua, bhojali and daa in their hands. The miscreants tried to enter his house and his aunt was trying to resist them. He saw the incident through a hole of his door. As the miscreants started banging on his door he tried to flee away from the rear door. When he was running away appellant no.2 Nasiruddin Mondal threatened him that they would kill him. He ran away taking advantage of the dark night and proceeded to call local people. Subsequently, he along with para people rushed to the house and found that his brother Asraf Ali Mallick lying inside his room in a pool of blood with incised injuries on his hand, head and neck. He also found Rokeya Bibi (P.W.8) and his younger brother who were weeping loudly as Asraf was murdered by the accused persons. He lodged written complaint with S.I. A. Banerjee resulting in registration of Amdanga P.S. Case No.17 dated 21.01.1992 under Section 302/34 of the Indian Penal Code and in conclusion of investigation, charge sheet was filed against the appellants as well as one Abadin Mondal and Golam Mondal under Section 302/34 of the Indian Penal Code.
The case was committed to the Court of Sessions and transferred to the Court of the Additional Sessions Judge, 1st Court, Barasat, 24 Parganas (North) for trial and disposal. Charges were framed against the appellants and one Golam Mondal under Section 147/148 of the Indian Penal Code and Section 302 read with Section 149 of the Indian Penal Code.
The appellants pleaded not guilty and claimed to be tried. In the course of trial, prosecution examined 16 witnesses and exhibited a number of documents. The defence of the appellants was one of innocence and false implication.
In the conclusion of trial, the trial Judge by judgment and order dated 17.12.2008 convicted and sentenced the appellants, as aforesaid. However, by the selfsame judgment and order co-accused Golam Mondal was acquitted of the charges levelled against him.
Mr. Basu, learned senior counsel with Mr. Mitter, learned counsel submits that charge framed in the instant case is defective as only four accused persons had been charged of forming an unlawful assembly for committing murder of the victim Asraf Ali Mallick punishable under Section 302 of the Indian Penal Code read with Section 149 of the Indian Penal Code. It is also submitted that evidence of P.W. 8, the wife of the victim is unreliable as there was no source of light inside the room and the incident had occurred during a dark night. It is further submitted that there are contradictions between the evidence of P.W. 8 and that of other prosecution witnesses. Senior counsel strenuously argued that non-examination of the investigating officer had prejudiced the appellants as the embellishment and/or improvements in the version of the prosecution witnesses particularly P.W. 8 could not be established. Accordingly, he prayed for acquittal of appellant nos. 2 and 3.
On the other hand, Mr. Maity, learned counsel appearing for the State submits that the presence of P.W. 8, the wife of the victim, was most natural at the place of occurrence. He further submitted that there was sufficient light from a burning lamp inside the room. He argued that the presence of the appellants had not only been noted by P.W. 8 while assaulting the victim but immediately prior to the incident the other prosecution witnesses had seen them at the place of occurrence thereby eliminating any chance of false implication. Moreover, the consistent ocular evidence of the appellants assaulting the victim is supported by medical evidence. In this factual backdrop, failure to examine the investigating officer has not caused prejudice to the appellants. Accordingly, he prayed for dismissal of the appeal.
Let me consider the rival submissions of the parties. P.W. 8 is the star witness for the prosecution. She was the wife of the victim and had witnessed the murderous assault on her husband. She deposed that in the midnight of 30/31.01.1992 she heard an explosion of bomb when she was sleeping with her husband in their room. They woke up, closed the door and concealed themselves inside the room out of fear. 4/5 miscreants entered the house and started searching for them. The miscreants caught hold of her hair and separated her from husband. Thereafter, the appellants started assaulting her husband and cut his throat. With the help of torch she recognized them. A lamp was also burning in the room at that time. In cross-examination, she stated that she had made a statement to the police denying that that she had not named the aforesaid appellants. She further clarified that with the help of lamp she had identified the accused persons.
P.W. 1, the de facto complainant and the brother of the victim, stated that he was sleeping in his room and woke up upon hearing the explosion of bombs. He saw through the hole in his door there was a scuffling between his aunt, Hamida Bibi, (P.W. 2) and appellant no. 1, Nazrul Islam (since deceased). They were trying to enter his room but his aunts were trying to resist them. On seeing the situation, he tried to flee away through the rear door of the room. While he was running away, appellant no.2 threatened him that he would be killed. Taking advantage of the dark night he ran away to call other persons of the locality. When he returned with the local people, he found his brother Asraf was lying dead in a pool of blood and with injuries on his neck. Rokeya Bibi, P.W. 8, Romjan Ali Mallick and other persons present in his brother's room. He could not say the motive behind the murder. He identified the appellant nos.1 and 2 in court. In cross-examination, he stated that it was a dark night and after putting off the light he had gone to sleep.
P.W. 2, Hamida Khatoon, is the aunt of the victim and P.W. 1. She deposed that on the fateful night she heard a sound of explosion of bomb. She was sleeping on the verandah adjoining the room of P.W. 1. At that time the appellants along with other miscreants came searching for P.W. 1. P.W. 1 fled away. She was scuffling with the miscreants who were searching for PW 1. Thereafter, the miscreants rushed to the room of Asraf and killed him. She, however, could not state who committed the murder of Asraf. She identified the appellants in court. In cross-examination, she stated that on the next day she was interrogated by police. She deposed that there was a courtyard between the room of P.W. 1 and that of Asraf. Due to darkness one could not see the room of Asraf.
P.W. 3, Ramjan Ali Mallick is the brother of the P.W. 1 and Asraf. He also deposed that he saw between the gap in his window that a scuffling was going on between P.W. 2 and Nazrul, Nasiruddin and Riajul when they were searching for P.W. 1. P.W. 1 fled away from his room.
P.W. 4, Johora Bibi deposed that she was sleeping with P.W. 2 in the verandah of P.W. 1. They were living in the same house. In the night of 30/31-01-1992, the appellants, Hafijul and Ahadul came to the place of occurrence and they scuffled with the accused person. Thereafter, the accused persons rushed to the house of Asraf. The miscreants had torches in their hands and there was a lamp in the room of Asraf. They entered the room of Asraf with daa. After a while they came out from the room of Asraf raising cry that their mission had been accomplished. In cross- examination, she stated that police interrogated her.
P.W. 5, 6, 7 and 9 are the cousins of P.W. 1. They have spoken that there was sound of explosion of bomb and miscreants had attacked the house of P.W. 1 but none of them had identified the miscreants.
P.W. 10 is the wife of P.W. 1. She had corroborated the evidence of P.W. 1.
P.W. 11 is the nephew of P.W. 1 and stated that in the midnight of 30-01-1992 the appellants and Hafijul made an attempt to commit murder to P.W. 1. P.W. 1 fled away. Thereafter, they murdered Asraf.
P.W. 12 is the signatory to the Inquest Report prepared over the dead body of Asraf. He had proved the signature marked as exhibit 2/1.
P.W. 13 is the brother-in-law of P.W 1. He is a reported witness and had not seen the incident.
P.W. 14 is the Autopsy Surgeon who conducted the post mortem examination over the dead body of the victim on 31-01-1992 and he had found the following injuries:
"1. Bleeding both ear;
2. Sharp cut looking wound over upper part of neck in the region Thyroid Cartilage at its upper part; more towards left 3" X 2"
directed down wards and towards left including Thyroid cartilage, trachea, muscles and vessels of left side of neck;
3. Sharp cut wound over front of left shoulder extending to left arm directed downwards 4''X2'' into part of muscle deep i.e. ½'';
4. Abrasion middle of left shoulder 1'' X ½";
5. Sharp cut wound over vault of scalp right side 1'' above hair margin (lowest limit), directed downwards 2''X1/2''X Perioeseum of bone;
6. Intra Cerebral haemorrahage present over brain surface more on right occipitoparietal region;"
He opined that the cause of death was due to shock and hemorrhage due to above noted injuries, which are ante-mortem and homicidal in nature.
P.W.15 was the S.I. of Police who received the written complaint from P.W. 1 and drew up the First Information Report.
From the aforesaid evidence on record, it appears that P.W. 8 was the sole witness of the murderer assault on her husband inside their room. We are in agreement with the contention on behalf of the State that she being the wife of the victim was the most natural witness who was in the room along with him. Her evidence has been challenged essentially on the ground of lack of sufficient light enabling her to identify the accused. It appears that the appellants were known to the witness from before and hence, it is not unlikely that she was able to identify them from the light of their torches and the lamp burning inside the room.
In the backdrop of these facts identification of the appellants by P.W.8 cannot be said to be either artificial or unnatural so as to throw out her evidence with regard to the assault. In addition thereto, there is ample evidence on record of P.Ws. 1, 2, 3, 4 and 10 that immediately prior to the incident the appellants had come in a body being variously armed with including sharp cutting weapons and had tried to attack P.W. 1 who fortunately escaped. In fact, P.W. 2 had scuffled with one of the appellants and could identify all of them. These circumstances immediately prior to the incident of assault upon the victim in his house in the presence of his wife (P.W.8) clearly corroborate and probabilise her version as to the role of the appellants in the merciless assault upon the victim resulting in his instantaneous death. Moreover, the ocular version of P.W. 8 is corroborated all the injuries found by the autopsy surgeon P.W.14 on the person of the victim which was the cause of his death. The number of injuries and their situs and the fact that the appellants came in a body being various armed and assaulted the victim conjointly leaves no doubt in my mind that they shared a common intention to commit the murder of the victim. In the face of the aforesaid ocular version of the witnesses corroborated by medical evidence, non-examination of the investigation officer, in our considered opinion, has not caused prejudice to the appellants or has amounted to a mistrial in law.
Coming to the issue of framing of charge under Section 302 read with Section 149 IPC, we find that the charge has been famed against four accused persons as the fifth accused namely, Ahadul had died. It would have been apposite that the name of the accused person namely, Ahadul (since deceased) ought to have been mentioned in the charge framed against the appellants. However, in the factual matrix of the case, I have no doubt that the appellants were fully aware of the matrix of the accusation levelled against them and no prejudice appears to have been caused in the charges framed against them. It is also pertinent to note that neither Ahadul nor Golam Mondal, the acquitted accused, had been named by P.W.
8. Therefore, conviction of the appellants under Section 302/34 IPC in the aforesaid factual matrix is wholly justified.
In view of the aforesaid discussion, the appeal is dismissed. Conviction and sentence imposed upon the appellant nos. 2 and 3 are upheld. Period of detention suffered by the appellant nos. 2 and 3 during investigation, enquiry and trial shall be set off from the substantive sentence imposed upon him in terms of 428 of the Code of Criminal Procedure. Their bail bonds are cancelled and they are directed to surrender forthwith to serve out the sentence in accordance with law.
Copy of the judgment along with LCR be sent down to the trial court at once for necessary compliance.
(Joymalya Bagchi, J.) I agree.
(Rajarshi Bharadwaj, J.) Item no. 246 Aloke/Sanjib